IlIBRARY OF CONGRESS.; 



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I UNITED STATKS UF AMERICA. J 



IMPEACHMENT OF THE PRESIDENT. 



SPEECH 




Xl 6 1. 



N V. L. PRUYN 



OF NEW YORK, 

IN THE HOUSE OF REPRESENTATIVES, FEBRUARY 24, 1868, 

On the resolution reported from the Committee on Reconstruction to impeach the Presi- 
dent of the United States of high criines and misdemeanors in ojice. 



Mr. PRUYN. Before I proceed to the gen- 
eral views which I wish to present I ask the 
House to consider the circumstances under 
which this very important subject conies be- 
fore it. 

On the 27th of January last certain papers 
and documents in regard to the aO'airs of the 
southern States were referred to the Committee 
on the Reconstruction of those States. On the 
21st of this month (Friday last) a letter from 
Mr. Stanton, communicating his removal from 
office as Secretary of War, was referred to the 
same committee. On the next day, after a 
meeting by the committee of one hour only, 
and that during the sitting of tiie House, and 
without leave, as we have been informed by 
my colleague, [Mr. BiiooKS, a member of tiie 
committee,] the chairman [Mr. Stevens, of 
I'ennsylvania] presented the report now be- 
fore us. Itsets forth the removal of Mr. Stan- 
ton by the President without any notice of the 
documents referred to the committee in Janu- 
ary last, and concludes as follows : 

"Upon the evidence collected by the committee, 
which is berewitli pre.-:eiited, and in virtue of tlie 
jiowers with which they have been invested by tlie 
House, tbeyaruof the opinion that Andrew Johnson, 
President of the United States, be impeached of high 
crimes and misdemeanors." 

And thereupon the committee recommended 
to the House the adoption of the resolution of 
impeachment which they presented. 

That is all there is of this report; and I 
venture to say that no deliberative assembly 
in the world was ever called upon to act on a 
matter of such grave, such vast importance, 
on so brief a notice, and on so meager a state- 
ment. It seems there was no testimony taken, 
no inquiry made, no explanation sought for, 
no notice given to the President of t^he refer- 



ence to the committee, or even of the time and 
place of its brief, irregular session. No des- 
potism could have worked more rapidly, nor 
could the restraints of constitutional govern- 
ment have been more effectually thrown aside ; 
and this course was followed up in the House. 
The chairman of the committee, in presenting 
the ret>ort, speaking evidently for the political 
majority of the House, said : 

" Itisnot my intention, in the first instance, to dis- 
cuss this question; and if there be no desire on the 
other side to discuss it wo are willing that the ques- 
tion should be taken upon the knowledge whicii the 
House already has." 

And he stated fui-ther— and this T understand 
not only from what the chairman said, but from 
the reiriarks of several gentlemen who advo- 
cate impeachment, is the gravamen of the 
charge against the President — to wit, that — 

" The fact of removing a man from office while the 
Senate was in session without the consent of the 
Senate, if there were nothing else, is of itself, and 
always has been considered, a high crime and mis- 
demeanor, and was never before practiced." 

This brings up in its whole length and breadth, 
without regard to the tenure-of-ofifice act, the 
question of the constitutional power of the 
Executive to remove from office ; and I hope 
to show that in the assertion thus made by the 
gentleman from Pennsylvania he is entirely 
mistaken. In the incidental discussion whicli 
occurred on Saturday last between the gentle- 
man from Illinois [Mr. Ingersoll] and myself, 
and in that, also, which took place this morn- 
mg, this proposition was again put forward, 
and on both occasions I promptly controverted 
it. And as it forms the very groundwork on 
which the superstructure of impeachment has 
been raised, I had expected it would have been 
fairly met, but in this I have been disappointed. 






The Constitution of the United States de- 
clares that — 

"The executive povrer shall be vested in a Presi- 
dent of the United States of America." 

Such are the exact words of the grant. 
There it stands in all its length and breadth, 
to be judged of by its own strong and compre- 
hensive terms. 'J'he exercise of the power is, 
indeed, in some cases, regulated by the Con- 
stitution ; but where not so regulated it stands 
in its full, unassailable integrity. A stable gov- 
ernment cannot be maintained without ample 
executive authority to enforce the laws, and 
thefraniers of our Constitution clearly intended 
to vest that power in the President only; and 
with their great knowledge of the science and 
princi|iles of Government none knew better 
than tiiey the necessary and legitimate extent 
of that power. It may be said it is a great 
power, and its exercise may be abused. All 
power, as we well know, may be abused. But 
when you look at the guards which surround 
the election of President, the limited term for 
wliich he is chosen, his almost direct account- 
ability to the Representatives of the people, the 
chances of abuse are much less with him than 
with a Senate composed of a large body of 
members on whom inliueuces may be exerted 
in various ways, sometimes vvithout their being 
aware of it. Indeed, every good appointment 
to public olHce made by the President does 
so much to strengthen and create respect for 
his administration. The distinguished gentle- 
man I'rom Pennsylvania, [Mr. W'ooDWAiu).] who 
addressed the iiouse this morning, brietiy re- 
i'erred to a discussion in the First Congress on 
tills subjec*'. That discussion, considering the 
circumstances which attended it. was one of 
the most important which has taken place in 
our constitutional history. At least fifteen of 
the thirty-nine persons who signed the Consti- 
tution were members of that Congress. The 
debate was so thoroughly exhaustive of the sub- 
ject that even with our experience at this day 
scarcely anything of importance can be added 
to it. And I do not hesitate to say that no 
member of this House should venture to vote 
in favor of the proposition to impeach the Pres- 
ident until he has studied that discussion. It is 
uni'air to the President, it is unjust to the great 
interests involved in this question, that gentle- 
men should act upon it without the views as to 
constitutional principles which the debate re- 
ferred to affords. It will be found reported in 
the first volume of the Annals of Congress, and 
I sliall refer to it very freely. 

By the consent of all parties, from the founda- 
tion of the Government down, Mr. Madison's 
views on constitutional questions have been 
looked to not only with the greatest respect, 
but, I may almost say, as conclusive on all 
contrfiverted pointy. The prominent part he 
took in the Convention which I'ormed the Con- 
stitution, the clearness, the calmness, and, at 



the same time, the vigor of his views, his active 
interest in the adoption of that instrument as 
evinced in the Federalist, which was so largely 
written by him, and in the councils of his own 
State, all combined to give him this position. 

The debate of 1789 took place on the bill 
organizing the Department of Foreign Affairs, 
afterward called the Department of State. The 
first section of the bill, as reported, provided for 
the appointment of the officer named, " to be re- 
movable from otfice by the President of the 
United States ;" and this brought up the whole 
subject of the power of appointment and re- 
moval under the Constitution. 

Mr. Madison, (at page 481,) after referring 
to the distribution of the powers of the Gov- 
ernment under the Constitution — into the legis- 
lative, executive, and judicial — and claiming 
that this distribution could not be interfered 
with by Congress, remarked — 

"The legislative powers are vested in Congress, 
and are to be exercised by theiu uncmitrolled by any 
other department, except the Constitution has (jual- 
ified it otherwise. The Constitution hii? ijualifieJ 
the lesislative power by authorizing the President to 
object to any act it may pass, requiriuK, in this case, 
two thirds of both Houses to concur in making a law ; 
but still the absolute lo>:islative power is vested iu 
the Congress with this (jualification alone. The Con- 
stitution alfirms th;it tiio executive power shall be 
vested in the President. Are there exceptions to 
this proposition? Yes, there arc. The Constitution 
says that in ajipointins to office the Senate shall bo 
associated with the President, unless in the case of 
inferior oflicers, when the law shall otherwise direct, 
ilave we a right to extendthis excciiliouV 1 believe 
not. If the Constitution has invested all executive 
power in the President I venture to assert that the 
Legislature has no right to diminish or modify his 
executive authority. 

"The question now resolves itself into this: is the 
powerof displacing an executive power? I conceive 
that if any power wliatevcr is in its nature executive 
it is the power ofappointiiig, overseeing, and control- 
ling those who execute the laws. If the Constitution 
hud not qualified the i>ower of the President in 
appointing to otfico by associating the Senate with 
him in that business, would it not be clear that ho 
would have the right, by virtue of his executive 
power, to make such appointment? Should we be 
authorized, iu defiance of that clause in the Consti- 
tution, 'The executive power shall bo vested in a, 
President,' to unite the Senate with the President in 
the apiiointmcnt to office? I conceive not. If it is 
admitted that we should not bo authorized to do this 
I think it may be disputed whether we have a right 
to associate them in removing persons from oUice, 
the one power being as nnich of an txeoutivo nature 
as the other: and the lirst only is authorized by being 
excepted ouf of the general rnic esLablished by the 
Constitution, in these words, "The executive power 
shall be vested in the President.' 

"The judicial power is vested in aSupremc Court; 
but will gentlemen say the judicial power can be 
placed elsewhere unless the Constitution has made 
an exceiitiou? The Constitution justitits the .Senate 
in exercising a judiciary power in determining on 
impeachments; but can the judicial power be further 
blended with the powers of that body ? They can- 
not. I therefore say it is incontrovertible, if neither 
the legislative nor judicial powers are subjected to 
qualificationsother thanthosodemanded in thoCon- 
siitution. that the executive powers are equally un- 
abatable as either of the others; and inasmuch as the 
power of removal is of im executive nature, and not 
alTected by any constitutional exception, it ' is beyond 
the reach of the legislative body.' " 



Again, at page 514: 

"However varioust.be opinions which exist upon 
the point now before us it seems agreed on- all sides 
that it demands a careful investigation and full dis- 
cussion. 1 feel the importance of the question, and 
know that our decision will involve the decision of 
all similar cases. The decision that is at this time 
made will become the permanent exposition of the 
Constitution; and on a permanent exposition of the 
Constitution will depend the genius and character of 
the whole Government, It will depend, perhaps, on 
this decision whether the Government shall retain 
the equilibrium which the Constitution intended or 
take a direction toward aristocracy or anarchy 
among the members of the Government. Hence, 
how careful ought we to be to give a true direction to 
a power so critically circumstanced." 

Let tis look at the views of others of the dis- 
tinguished members of the First Congress. I 
will quote the remarks of Mr. Boudiiiot, of 
New Jersey, whose memory commands the 
most profoiiiid respect as one of the great men 
of our early history : 

" Let us exaacine whether it [the power of removal] 
belongs to the Senate and President. Certainly, sir, 
there is nothing that gives the Senate this right in 
express terms; but they are authorized in express 
words to be concerned in the appointment. And 
does this necessarily include the power of removal ? 
If the President complains to the Senate of the mis- 
conduct of an officer, and desires their advice and 
consent to the removal, what are the Senate to do? 
Most certainly they will inquire if the complaint is 
well founded. To do this they must call the officer 
before them to answer. Who, then, are the parties? 
The supreme executive officer against his assistant; 
and the Senate are to sit as judges to determine 
whether sufficient cause of removal exists. Does not 
this set the Senate over the head of the President? 
But suppose they shall decide in favor of the officer, 
what a situation is the President then in, surrounded 
by officers with whom, by his situation, he is com- 
pelled to act, but in whom he can have no confi- 
dence, reversing the privilege given him by the 
Constitution, to prevent his having officers imposed 
upon him who do not meet his approbation. But I 
have another more solid objection which places the 
question in a more important point of view. The 
Constitution has placed the Senateas the only secur- 
ity and barrier between the House of Representa- 
tives iind the President. 

" Suppose the President has desired the Senate to 
concur in removing an otlicer, and they have declined, 
or suppose the House have applied to the President 
and Senate to remove an oBicer obnoxious to them, 
and they determine against the measure, the House 
can have recourse to nothing but an impeachment, 
if they suppose the criminality of the officer will 
warrant such procedure. Will the Senate then be 
that upright court which they ought to appeal to on 
this occasion, when they h;ive prejudged your cause? 
I conceive the Senate will be too much under the 
control of their former decision to be a proper body 
for this House to apply to for impartial justice. 

" As the Senate are the dernier resort, and the onlj^ 
court of judicature which can determine on cases of 
impeachment, I am for i)rcserving them free and 
independent, both on account of the officer and this 
House. I therefore conceive that it was never the 
intention of the Constitution to vest the ]>ower of 
removal in the President and Senate: but, as it must 
exist somewhere, it rests in the President alone." 

I may here add the following remark of Mr. 
Goodhue, (page 555:) 

"It moreover appears very clear to me that the 
Senate, who are a judicial body, ought not to meddle 
with the business of removal, because they will have 
prejudged the case if an impeachment should there- 
after be made." 

Is it not, Mr. Speaker, a most striking com- 



ment on the broad and sagacious views of Mr. 
Boudiiiot, that he looked into the future with 
such prophetic clearness? The case of Mr. 
Stanton is before us almost in name and words, 
in spirit and substance entirely so. The evils 
to follow from an act containing the princi- 
ples of the tenure-of-oliice act are stated 
almost as clearly as if the act itself had lieen 
before tlie speaker in written words ; and the 
Senate by the resolutions which they adopted 
a few days ago, denying the President's riglit 
to remove Mr. Stanton, will be placed, should 
the President be impeached by this House, in 
the position which it was predicted would be so 
unfortunate for the cause of "impartial justice." 
Iknowit may lie said that Senators never could 
have supposed at the time those resolutions were 
adopted that this House could be guilty of so 
great an act of folly as to impeach th^ Presi- 
dent for having removed Mr. Stanton, and I 
trust that their expectations in this respect will 
prove to have been well founded. Any othc-r 
view of the action of the Senate will, I am 
sure, do injustice to many of the members of 
that body, if not to all who voted in favor of 
the resolutions to which I have alluded. The 
Senators certainly would not have rushed on 
to judgment in advance could they for a mo- 
ment have believed that for the act referred to 
the House would impeach the President. 

I add extracts from the remarks of that 
great man and orator, Fisher Ames, who said ; 

"The Constitution places all executive power in 
the hands of the President, and could he personally 
execute all the laws there would be no occasion for 
establishing auxiliaries; but the circumscribed powers 
of human nature in one man demand the aid of 
others." * * * * "H^i must therefore have 
assistants. But in order that he may be responsible 
to his country he must have a choice in selecting his 
assistants, a control over them with powerto remove 
them when he finds the qualifications whicli induced 
their appointment cease to exist." * * '■' * 

"The executive powers are delegated tothe_ Presi- 
dent with a view to have a responsible officer to 
superintend, control, inspect, and check the officers 
necessarily employed in administering the laws. 
The only bond between him and those he employs is 
the confidence he has in their integrity and talents; 
when that confidence ceases the principal ought to 
have power to remove those whom he can no longer 
trust with safety. If an officer shall be guilty of neg- 
lect or infidelity there can be no doubt but he ought 
to be removed ; yet there may be numerous causes 
for removal which do not aniouut to a crime. Ho 
may propose to do a mischief, luu I believe the mere 
intention would not be cause of impeachment. He 
may lose the oonfidenceof the people upon suspicion, 
in which case it would be improper to retain him in 
service; he ought to be removed at any time when, 
instead of doing the greatest possible good, he is 
likely to do an injury to the public interest by bemg 
continued in the admininistration." 

********* * 

" But why sliould we connect the Senate in the re- 
moval? Their attention is taken up with other im- 
portant business, and they have no constitutional 
authority to watch the conduct of the executive olii- 
cers, and therefore cannot use such authority witu 
advantage. If the President is inclined to shelter 
himself behind the Senate, with respect to having 
continued an improper per.son in office, we lose the 
responsibility, which is our greatest security; the 
blame among so many will be lost. 



"Another reason occurs to me nprainst blending 
these powers. An officer who superintends the pub- 
He revenue will naturally iicriuire a gri^it influence. 
If he obtains support in iheSenate, upcn an attempt 
of the President tn remove him, it will be out of the 
power of the House, when applied to by the First 
Magistrate, toimpench him with success; forthe very 
means of proving charses of mnlconductasainst him 
will be under the i)owerof the officer: all tlie papers 
necessary to convict him may be wilhheld while the 
person continues in his office. 

"Protection may be rendered for protection ; and 
as this officer has such extensive influence it may be 
exerted to procure the reelection of his friends. These 
circumstances, in addition to thosestatcd bytheKcn- 
tleman from Jersey, (Mr. Boudlnot,) must clearly 
evince to every gentleman the impropriety of con- 
necting the Senate with the President in removing 
from ofBce." 

I quote what. Jnrlge Benson said, (page 525:) 

"I will not repeat what lias been said to prove 
that the true construction (of the Constitution) is, 
that the Presiclciit alone has the power of removal; 
but will slateara-e tosliow the embarrassment which 
must arfce by a comliinatioii of the senatorial and 
legislative authority in this particular. I will in- 
stance the officer to which the bill relates. To him 
will necessarily bo committed negotiations with tlie 
ministers of foreign courts. This is a very delicate 
trust. The supreme executive officer, in superin- 
tending this Department, may be entangled with 
suspicions of a very delicate nature relative to the 
transactions of the officer, and such as from circum- 
stances would be injurious to name; indeed, he may 
be so situated that lie will not, cannot give the evi- 
dence of his sii.'i'icion. Now, thus circumstanced, 
suppose he should iiroi)ose to the Senate to remove 
the Secretar.\' of Foreign Atiairs. are wc to expect the 
Sen^c will, without any reason being assigned, im- 
jilicitly submit to his i)roiH)sition? They will not. 
Suppose he should say he sus|)ected the man's fidel- 
ity; they would say we muat proceed further, and 
know the reason for this suspicion ; they would insist 
on a full communication. Is it to be supiioscd that 
this man will not have a single friend in the .Senate 
who will contend for a fair trial and a full hearing? 

"The President then becomes the i)lniiitifi"aiid the 
secretary the defendant. The Senate are sitting in 
judgment between the (,'hiel Magistrate of the United 
States and a subordinate officer. Xow, I submit to 
the candor of the gentlemen whether this looks like 
good government? Yet in every instance when the 
President thinks proper to have an officer removed 
this absurd scene must be displayed. How much bet- 
ter, cTOi) on princi[>les of expediency, will it be that 
thePresident alone have thepower of removal." 

Plere, again, we have the present condition 
of things stated with as much clearness as if 
it had transpired in 1789. 

I shall only add what was stated by one of 
the most eininctit of the gretit men of his day ; 
and you will observe that he, also, was fully 
aware of the ditlicuities which would grow out 
of the power of removal, if it could be exer- 
cised by the President only by and with the 
advice and consent of the Senate. 

Mr. Sedgwick said : 

"Suppose the President has a Secretary in whom 
ho discovers a great degree of ignorance or a tot.-il 
incapacity to conduct the business he has assigned 
him ; suppose him inimical to the President, or sup- 
pose any of the great variety of cases which would 
be good cause for removal, and impress the propriety 
of such a measure strongly on the mind of tbe Presi- 
dent, without any otlierevidence than what exists in 
his own ideas, iVoni aeontemplation of the man 'scon- 
duct and character day by day, what, let me ask, is to 
be the consequenecif IlieSeiiateare to be ai)plied to? 
If they are to do anything in this business,! presume 
they are to deliberate, because they are to advise and 



consent. If they are to deliberate, you put them be- 
tween the officer and the President. They are then 
to inquire into the cause of removals; the President 
must produce his testimony. How is the question to 
be investigated? Because, I presume, there must be 
somerational ruleforconductingthis business. Isthe 
President to bo sworn to declare the whole truth and 
to bring forward facts? Or are they to admit sus- 
picion as testimony ? Or isthe word of the President 
to be taken at all events? If so, this check is not of 
theleast efficacyin nature. Butif proof benecessary, 
what is then the consequence? Why, in nine case-s 
out of ten, where the case is very clear to the mind 
of the President that the man ought to be removed, 
the effect cannot be produced, because it isabsolutelj' 
impossible to i)roduce the necessary evidence. Arc 
the Senate to iiroceed without evidence ? Some gen- 
tlemen contend not. Then the object will be lost. 
Shall a man, under these ciriuimstanccs, be saddled 
upon the President, who has been apixiinted for no 
other purpose but to aid the President in iK-rforming 
certain duties? Shall he be continued, I ask .-ig.-iin, 
against the will of the President ? Jf ho is, whereui* 
the resijunsibility ? Are ycui to look for it in the. 
President, who has no control over the officer, no 
jiowcr to remove him if he acts unfeelingly or unfaith- 
fully? Witliout you make him resiionsible you 
weaken and destroy the strength and beauty of youu- 
.sy.stem." 

Such were some of the views urged in favor 
of the e.xecntive power of reniovtil from office. 
They were met with vigor by gentlemen of 
ability, stime of whom claimed that impeach- 
ment must be resorted to if an officer had be- 
come unfaithful. Others tliat the President 
could remove only in the inaniier he appointed, 
that is, by and with the advice tmd consent of 
the Senate. The debate, as 1 liave already 
said, was very thorough ami comprehensive, 
and on what may be considered as the test 
question it was held that the Constitution con- 
ferred the power of removal on the li.vecutive, 
by a vote of 31 to 19; tmd on the third read- 
ing the bill passed by a vote of 29 to 2'2. As 
the Senate then held its sittings with closed 
doors, we have no reports of the deliates in that 
body, but the bill passed by the casting vote 
of the Vice President. 

Such are the facts which relate to tliis deeply 
interesting event in our constitutional history. 

Chancellor Kent, speaking of the snliject in 
his Commentaries (the first edition of which 
appeared forty-two years ago) and of the deljate 
in Congress, to wliich i have referred, says ihiit 
the question maybe considered "as firmly and 
definitely settled, and there is good sense and 
practical utility in the construction.'' 

Judge Story, in his Commentaries on the Con- 
stituti(m, (the first edition of which appetired 
thirty- five years since.) considers this msitter 
very fully, gives the arguments on i)oth sides, 
and ctmcedes that it will be dilHciili, |)erhiip.s 
impracticable, aft'-r forty years" experience, to 
change the practice which has existed since 
17S9, But as " inferior olliccrs," which desig- 
nation includes the great body of i>ublic otncers. 
may be appointed in one of severiil modes pre- 
scribed by the Constitution, he considers the 
remedy fur any abuse of power by the President 
to be within the control of Congress. 



This disposition of the matter has at times 
been questioned by some of our most distin- 
guished statesmen; but I believe that the con- 
clusion was uniformly arrived at that the ques- 
tion had been fairly settled. Mr. Webster, in 
the Senate some thirty years ago, while cen- 
suring the manner in which the power of re- 
moval had been exercised, did not question its 
existence in the President; and a committee 
of the Senate, as early as 1826, proposed to 
reach the matter, not by legislation, but by an 
amendment of the Constitution. Whether the 
decision of the Congress of 1789 was wise or 
not, it is clear that the practical construction 
of the Constitution has been uniform from that 
time till the passage of the tenure-of-ofRce act 
in 1867, the long period of seventy-eight years. 
Seventeen distinguished persons had, in that 
long period, occupied the presidential office. 
Thirty-eight Congresses had followed that of 
1789 ; thousands of officers had been removed 
by the Presidents during that time and appoint- 
ments made to fill those and other vacancies; 
in short, the principle had been recognized 
by every department of the Government in 
every possible way. And is all this to go for 
nothing? Six years, by the statute of limita- 
tions in almost every State of the Union, as to 
personal property, and twenty years as to real 
estate, disposes of claims on which large rights 
and often the welfare of individuals and fami- 
lies, and even important interests of commu- 
nities, depend. According to the usual rules of 
computation, four business generations have 
nearly passed away since this question was dis- 
posed of after most deliberate consideration. 
Are we now to overturn it? Are decisions 
on constitutional questions never to be re- 
sj)ected? Is the President, who alone, of all 
the officers of the Government, is bound by his 
oath of office "to preserve, protect, and de- 
fend the Constitution of the United States," 
to be judged harshlj^ tor seeking to enforce 
respect to that instrument? 

In further answer to the denial that the Presi- 
dent ever made removals from office while the 
Senate was in session, I have to say that he not 
only uniformly made such removals, but that no 
other person or body did. The Senate never 
made tliera, or gave their " advice and consent" 
to any removal, and no record of the kind will, 
I venture to say, be found on tiie Journals of 
the Senate. 

I will now read copies, from an official source, 
of messages sent by several of the Presidents 
to the Senate on making nominations to office. 
The first will be one of John Adams. It is as 
follows : 
Gentlemen of the Senate : 

I nominate Hon. John Marshall, esq., of Virginia, 
to be Soc-retary of State in the place of lion. Tim- 
othy Pickering, esq., removed. 

• JOHN ADAMS. 

United States, May 12, 1800. 

Mark the language — " removed," not " tobe 



removed," or " whose removal I recommend" 
— no separate writ of supersedeas may have 
actually issued, but the right to do so existed 
and it might have been issued. It was only a 
question between the President and the incum- 
bent whether this should be done or whether 
the new commission should, when presented, 
operate as the supersedeas. Mr. Webster stated, 
in the discussion before referred to, that a notice 
might be given by the President that the re- 
moval would take place on a certain day, which 
is no less a reiuoval than the same act would 
be on a later or an earlier day. 

I give a message by President Taylor, omit- 
ting the names : 

Executive Office, December 18, 1849. 
To the Senate of the United States : 

I nominate to be marshal of the Uni- 
ted States for , in place of . removed. 

Z. TAYLOR. 
I give another : 

To the Senate of the United States 

1 hereby nominate 

master at , in place of 

incumbent, removed. FRANKLIN PIERCE. 

Washington, 13 Februai-y, 1856. 

One more, and I have done : 

Washington, March 13. 1861. 
To the Senate of the United States : 

I nominate to' be collector of the cus- 
toms for the district of , in the place of 



to be deputy post- 
, the present 



-, removed. 



ABRAHAM LINCOLN. 



These examples might be multiplied almost 
indefinitely from the files of the Senate, as all 
the occupants of the presidential office have 
pursued a uniform course in this respect. 

Let me also refer the House to the language 
of the commissions issued to the heads of 
Departments, diplomatic and consular officers, 
attorneys, marshals, and many other officers of 
Government, from General Washington's day 
down to the passage of the tenure-of office act. 
The party is appointed (to office, and such is 
the commission Mr. Stanton holds,) "'during 
the pleasure of the President of the United 
States for the time being." How could lan- 
guage show more conclusively that the Presi- 
dent may at any time remove from office? 

There is a strong case on record (and more 
may, I presume, be found) in which the Pres- 
ident made an absolute removal from office dur- 
ing the sitting of the Senate and without even 
naming any successor till a long time after- 
ward. I refer to the case of a former post- 
master at New York. The facts are set forth 
in Executive Document No. 91 of the House 
of Representatives, first session of the Thirty- 
Sixth Congress. The postmaster at New York 
was believed to be a defaulter, and he was 
promptly removed by an order, in the nature 
of a sJtpej'serfeas, issued by President Buchanan, 
on the 10th of May, 1859, without any com- 
munication with the Senate. The present 



6 



Judge Holt was then Postmaster General, 
and seems to have taken the entire direction 
of the matter. Congress remained in session 
till the 25th June, but no nomination to the 
vacant office was made by the President up to 
that time. It may be said that the public 
funds were in jeopardy, and the President 
was therefore bound to malce the removal. 
But it is clear that this of itself would afford 
no apology for an act unwarranted by the Con- 
stitution. The question was one of poicer ; 
he either had or had not the power, and the 
exercise of it, in the case referred to, was of 
such marked notoriety, that had there been 
any person in the land disposed to question 
it the objection would certainly have been 
made. 

Mr. Madison's views on this subject were 
freely expressed in his later days, and after his 
long experience of the operations of the Gov- 
ernment were entirely in coiiforniity with those 
he entertained in 17S0. They will be found in 
his letter to John M. Patlon, dated March 28, 
1834. 

In a letter to Mr. Coles, of October 15, 1834, 
he said, page 404: 

"The cliiiin on cnnstitutional prrouncl to a shareCby 
the Senato) in tlio removal, an well a? appoint in r'lit 
of ofRcers, is in direct opposition to the unilorui 

fraetice of the Government from its commencement, 
t is clear that the innovation would not only vary 
essentially tlie exislins balance of power, but expose 
the Executive occasionally to a total inaction, and at 
all times to delays fatal to the due execution of the 
laws." 

General Jackson's views were given on his 
protest to the Senate of April 15, 1834. I 
present brief extracts from this document: 

"The whole executive power being vested in the 
President, who is responsible for its exercise, it is a 
necessary consequence that he should have a right to 
employ agents of his own choice to aid him in the 
performance of his duties and to discharge them 
when he is no longer willing to be responsible for 
their acts, in strict accordance with this principle 
the power of removal, which, like that of apiioint- 
ment, is an original executive power, is left un- 
checked by the (Jonstitutiou in relation to all execu- 
tive oflicers, for whose conduct the President is 
responsible, while it is taken from bira in relation to 
judicial otBcers, for whose acts he is not responsible." 

After having referred to the debate in the 
Congress of 1789, he said: 

"Here, then, we have the concurrent authority of 
President Waisiungtoii, of the Senate, and the House 
of Representatives, numbers of whom had taken .an 
active part in the Convention which framed the (Con- 
stitution, andin the .State con veritionswtiich ado;)T,ed 
it. that the President derived an unqualified power 
of removal from that instrument itself, which is 
beyond the reach of legislative authority. I'pon this 
jirinciple the Government has now been steadily ad- 
ministered for about forty-five years, during which 
there have been numerous removals made by the 
President, or l>y his direction, embracing every grade 
of executive officers from the heads of Departments 
to the messengers of bureaus." 

This question has also been passed upon by 
the judiciary, and I refer to this verj^ briefly. 
In the case of Hennen, reported in 13 Peters' 



Supreme Court Reports, page 250, the Supreme 
Co\irt of the United States fully recognized the 
doctrine established by the Congress of 1789, 
and we thus have a substantial agreement on 
this subject between all branches of the Gov- 
ernment, for the long period of seventy-eight 
years, from 1789 to 18G7. 

I have thus, I think, established the state- 
ment made in the outset — that the chairman of 
the committee, Mr. Stevens, is entirely wrong 
in claiming that the President never removed 
from office during the sitting of the Senate un- 
less with the consent of the Senate — atid have 
shown that the President alone wiaAcs removals, 
the Senate taking no part whatever in them, 
but only approving or rejecting nominaiions 
to fill offices which the President may send to 
them, and that this will be proved by reference 
to the Journals of the Senate. If I am wrong in 
my position it is due to the importance of the 
subject that the committee should, before this 
discussion closes, state the facts on which they 
base their extraordinary statement. 

We now come to a change in the policy of 
Congress by the passage of the tenure-of- 
office act in 1867. The first clause of that 
act provided — 

"That every person holding any civil office to 
which he has been appointed by and with the advice 
and consent of the Senate, and every person who 
shall hereafter be appointeil to any such office and 
shall become duly qualified to .act therein, is, and 
shall be, entitled to hold such office until a successor 
shall have been in like manner appointed and duly 
qualified, except as herein oliierwise provided : Pro- 
vided, That the Secretaries of State, of the Treasury, 
of War, of the Navy, and of the Interior, the Post- 
master General, and the Attorney General, shall 
hold their offices respectively for and during the 
term of the President by whom they may have been 
appointed, and for one month thereafter, subject to 
removal by and with the advice and consent of the 
Senate." 

This act was passed after a long debate in 
both Houses, especially in the Senate, and 
was met by a veto message from President 
Johnson, sent to the Senate on the 2d of March, 
1867, in which he reviewed the history of the 
executive power of removal with great clear- 
ness and aL)ility, and contended that the pro- 
posed statute would be a violation of the Con- 
stitution as it had been understood and acted 
upon by all the departments of Government 
since 1789. The bill, notwithstandingtheveto, 
became a law by a two-thirds vote of both 
Houses of Congress, and it thus stands on the 
statute-book. 

As Mr. Stanton, the Secretary of War, had 
been appointed by Mr. Lincoln, and held his 
office witiiout any new commission having l)een 
issued to him by President Johnson, the latter 
claimed that Mr. Stanton's case was within the 
very terms of the proviso in the act of 1867, 
and deeming that the public interests required 
a change in the War Department he suspended 
Mr. Stanton from office (after his refusal to 
resign) on the 12th of August, 1867, and 



appointed General Grant Secretary of War ad 
interim. 

It has been said that the proviso in the teuure- 
of-office act does not cover the case of Mr. 
Stanton, for the alleged reason that Mr. John- 
son is serving out the '' term" of office of Mr. 
Lincoln. That this construction does not meet 
the spirit of the proviso, by which it was clearly 
intended that the President should always have 
a Cabinet of his own choice, is so clear to every 
candid mind that it does not admit of question. 
It is entirely inconsistent with the discussion 
had in Congress, where no such forced con- 
struction was hinted at. The Constitution says 
of the President, "he shall hold his office 
during a terra of four years." The office and 
the term, be it more or less, evidently and of 
necessity go together. Can it be said of any 
man that he holds a term of office after death? 
Or of any person that he holds an office, and 
that it is the "term" of a person who is dead ? 
That it would have been the term of such other 
person had he lived is quite true, but death 
severed his connection with all earthly things. 
The "'terra" is no longer his. Whatever was 
left of it passed to his successor. 

If the discussion referred to be carefully ex- 
amined it will be seen that several Republican 
Senators stated unhesitatingly that the act was 
not a party measure; that they desired to re- 
spect the office and the rights of the President ; 
that they took it for granted that no person 
fit to occupy the position of a Cabinet minister 
would hold the place when liis relations were 
nni'rit^ndly and hostile to the President, and 
also that they considered it important that 
there should be a cordiality of feeling and an 
agreement as to matters of State policy between 
the President and those who are his confiden- 
tial advisers. (See the remarks in the Con- 
gressional Globe of 18GtJ-()7, of Senators 
Howe, Fessenden, Edmunds, Sherman, Wil- 
liams, Tk'jmbull, and others. I have no time 
to read them, and can only refer to them.) 
The idea ihat the act could be so construed as 
to place it beyond the power of President 
Johnson to remove members of his Cabinet, 
not appointed by him, is entirely at variance 
with the views expressed during the discus- 
sion, and if we are to believe, as I do, what 
many honorable Senators said as to their 
motives, no such thing was thought of or 
intended. 

With a sincere desire, as it seems to me, to 
avoid any collision or question with Congress, 
the President submitted to the Senate by his 
message of the 12th December, 1867, all the 
papers connected with the removal of Mr. 
Stanton, and a statement of the reasons which 
led him to the ])erformance of that duty. In 
this document the President stated that when 
the tenure-of-office bill was before him he 
consulted his Cabinet in regard to it, and that 
every member of that body advised him that 



the law was unconstitutional — the condemna- 
tion of Mr. Stanton being "the most elab- 
orate and emphatic." He referred, as the 
President states, "to all the arguments on 
the subject, and added the weight of his own 
deliberate judgment, and advised me that it 
was my duty to defend the power of the Presi- 
dent from usurpation, and to veto the law." 
The Senate did not agree with the President as 
to the sufficiency of his reasons for suspending 
Mr. Stanton and he was consequently reinstated 
in office. Having failed to secure Mr. Stanton's 
removal in this way, and Mr. Stanton not hav- 
ing resigned, as some of his friends expected 
him to do, the President, treating the tenure- 
of-office act as unconstitutional, removed him 
absolutely under his constitutional executive 
authority, and, under the act of 1795, designated 
Adjutant General Thomas Secretary of War 
ad interim, and there the matter now stands, 
Mr. Stanton having refused to surrender the 
office to General Thomas. The Senate, having 
been informed of this action, thereupon adopted 
the resolutions of disapproval to which I before 
referred. Forthisactof removal it is proposed 
that this House do now impeach the President. 

President Johnson stands 'nefore you charged 
with no offense against good morals, with no 
want of personal or official integrity or capa- 
city, with no inattention to or neglect of duty, 
but simply with having ventured to differ from 
Congress as to the constitutionality of the 
tenure-of-office act, a difference which all the 
facts show was a conscientious one, and hav- 
ing acted accordingly. 

In his construction of this act he is sup- 
ported, as I hope I have already shown, by the 
uniform course of all departments of the Gov- 
ernment from 1789 to 18G7 ; and in the debate 
in the Senate on the act of 18G7 it was admit- 
ted by some of the friends of the bill, and 
claimed by all its opponents, that its constitu- 
tionality would be questioned and disputed. 
That the President was bound by his oath of 
office, of such marked significance, to defend 
his power from usurpation, and to veto the 
law was particularly urged upon him by Mr. 
Stanton, who still claims the administration 
of the \7ar Office. 

Is ihe President of the United States for 
such a cause and under such circumstances to 
be impeached? Are we to resort to this ex- 
traordinary remedy, one v/hich would draw 
upon us the comments of the world, because 
Congress and the President difier as to the 
constitutionality of a certain statute, when the 
Supreme Court could in a few weeks hear and 
finally dispose of the question? What is the 
world to think of constitutional government, 
when he who has been specially chosen to 
maintain it is struck down by the House of 
iiepreseutatives while gallantly standing up in 
its defense? 

Some gentlemen may consider this a very 



8 



pleasant political episode, and think it will 
work out well for party purposes. But let me 
warn them that years hence, this thiug, if 
now accomplished, will return to shame and 
to plague them. Impeachment, if it now suc- 
ceed, will become a favorite political remedy 
for a strong legislative majority in many of 
our State Legislatures, when the greater part 
of them happen to differ from their executive 
on public matters, and once taught how the 
power is to be used the use will not readily 
be abandoned. Like some burden once im- 
posed for some alleged temporary purpose, 
it is easily fastened upon community, while 
years of effort are necessary to remove it. 
What is the end to be gained ? The decision, 
if adverse to the President in this case, will 
not settle the law as to other incumbents of 



the executive office. The question will still 
remain to be settled in the future. Should the 
Senate find the President guilty of a violation 
of the law, they surely would not undertake to 
remove him from office for venturing to differ 
from Congress on a doubtful question of law. 
This would virtually be claiming infallibility 
for themselves. I am quite aware that there 
are persons who look upon this question as 
more of apolitical than a judicial question, but 
I am sure that the large number of gentlemen 
of high cliaracter in tlie Senate who will try 
this matter if it reaches them, will act the part 
of impartial judges, feeling conscious that they 
are accountable not to any political party, but 
to the cause of truth and justice here, and 
hereafter to a higher tribunal whose adminis- 
trations are infallible. 



Printed at the Congressional Globe OfiSce. 



